Copyright Law And The Grenfell Fire - Why We Cannot Let Legal Standards Be Locked Up By Copyright

from the burning-down-the-house dept

It's always hard to write about the policy implications of tragedies – the last thing their victims need is the politicization of what they suffered. At the same time, it's important to learn what lessons we can from these events in order to avoid future ones.
Earlier Mike wrote about the chilling effects on Grenfell residents' ability to express their concerns about the safety of the building – chilling effects that may have been deadly – because they lived in a jurisdiction that allowed critical speech to be easily threatened. The policy concern I want to focus on now is how copyright law also interferes with safety and accountability both in the US and elsewhere.

I'm thinking in particular about the litigation Carl Malamud has found himself faced with because he dared to post legally-enforceable standards on his website as a resource for people who wanted ready access to the law that governed them. (Disclosure: I helped file amicusbriefs supporting his defense in this litigation.) A lot of the discussion about the litigation has focused on the need for people to know the details of the law that governs them: while ignorance of the law is no excuse, as a practical matter people need a way to actually know what the law is if they are going to be expected to comply with it. Locking it away in a few distant libraries or behind paywalls is not an effective way of disseminating that knowledge.

But there is another reason why the general public needs to have access to this knowledge. Not just because it governs them, but because others' compliance with it obviously affects them. Think for instance about the tenants in these buildings, or any buildings anywhere: how can they be equipped to know if the buildings they live in meet applicable safety standards if they never can see what those standards are? They instead are forced to trust that those with privileged access to that knowledge will have acted on it accordingly. But as the Grenfell tragedy has shown, that trust may be misplaced. "Trust, but verify," it has been famously said. But without access to the knowledge necessary to verify that everything has been done properly, no one can make sure that it has. That makes the people who depend on this compliance vulnerable. And as long as copyright law is what prevents them from knowing if there has been compliance, then it is copyright law that makes them so.

Of course, there are lots of standards at issue in the Public Resource cases, and not all of them necessarily would threaten mortal peril if they were not complied with. But the federal court's decision in these cases, if allowed to stand, means that all sorts of standards, including those bearing on public safety, can be kept from ready public view through a claim of copyright. As the resultinginjunctions ordering Carl Malamud to delete accurate and operable law from his website makes clear, no matter how accurate or operable the legal standard, no matter how critical compliance with the standard is to ensure the health and safety of the public, people can be prevented from sharing the knowledge of what that standard contains.

And it not only prevents people in one jurisdiction from knowing what that standard is. It prevents people anywhere in the world from knowing. If an American jurisdiction has made innovations in public safety standards, no one else in the world can freely benefit from that knowledge in order to figure out whether their own local standards are sufficient. It's an absurd result – the purpose of copyright law is, after all, all about developing and disseminating knowledge – and it's one that hurts people. It is not something we should be encouraging copyright law, or any law, to do.

Jurisdiction that allows critical speech to be easily threatened!

"A jurisdiction that allows critical speech to be easily threatened"That will be the US, where:** Techdirt is being sued for accurately reporting the history of e-mail and a man who wants to say he invented it** Gawker is out of business after being sued by a billionaire for accurate (if disgusting) pictures** Various takedown orders against internet sites have been obtained under fraudulent pretenses for negative reviews** The NEC (national electric code) has been ordered off-line.** Net neutrality is under attack and there is a mass protest about it today

I agree locking up the standards threatens safety, and we should fix it. It's more than building codes: things like ISO 26262 "Road vehicles – Functional safety" sometimes circulate as samizdat but are basically unavailable.

But this case didn't hinge on the details; everyone knew the building was unsafe. Among other things, it had only one stairwell! That's been illegal in New York City since 1862 (1860 for new construction), so I'm sure you can find an out-of-copyright document about that.

Abolish Copyright

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They claim it's to avoid cases where people claim they didn't know the law required them to stop at red lights or not kill their neighbor. You know, things a jury would never buy. Then they turn around and apply it to secret laws you can't possibly know or learn unless you're part of a special group. It's why there's been an upswell in calls for jury nullification.

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This has nothing to do with being able to follow the law.

This is about private companies that create standards for how companies make a product, provide a service or do business. BSI is one such company, they have created standards for how companies must operate and some regulatory agencies throughout the world have adopted those standards as laws.

These are not laws that the general public must follow, but laws that companies must follow.

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This comment is totally wrong.

Firstly, they are laws of general applicability. Secondly, BSI plays a special role in the system of delegated legislation. Thirdly, as the article makes clear, this is about far more than "laws that companies must follow" ... it is about laws that guarantee the public safety, that apply to every school and public building, that have a direct impact on life-safety.

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And I would also say that yes, these are public safety laws, but not laws that must be followed by the general public. The laws are for companies.

Again, it would be beneficial for the public to know what their schools must comply with, what their apartment owner must comply with, what their electrician, plumber or builder must comply with, but it isn't something that the general public would ever get arrested for by violating them.

I agree, the standards should be public, but quite a few posters here don't understand what the subject is all about.

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Laws that are private to companies are laws that those companies can ignore while claiming that they are following them. Therefore it is essential that members of the public can see those laws so that they oversee what companies are actually doing.

Cop vs Cit?

There are so many laws that you MUST REQUEST be fulfilled, that its getting harder to decide what to enforce.

Laws where police dont enforce, as they have to be debated by lawyers..

The police cant even know 1/10 of the laws and regulations..They know the basics..Cits, hardly KNOW what is the laws either, we only KNOW what we are told..which is abit of BS..I could post a Poster/flyer, and make it look official as HELL...and few would question it or even ASK/LOOK it up..but WHERE do you look it up??

I have NEVER been given a manual except at the drivers Lic. bureau..Not from OSHA, not building codes, not State or federal compliance. What AM I, the state, feds responsible for?? I never get a notice if the City/country ADD a new regulation to keep your grass CUT..I only get an officer at my door.

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FOR some odd reason...They could not arrest the OWNER..Even tho the building is/was SUBPAR..

It had to goto Court..Who is going to do this??WHO do you complain to??Are they doing their JOB??

I know Locations where people Live in, ALMOST, Huts..which would probably be better..Trailers that have set for 40+ years..Not enough insulation, heating, much of anything..BUT its the only thing they can Afford.

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They do it all the time. In some cases, it's something they THINK is the law when it's not. In others, it's a local ordinance no one could know unless you lived there, and sometimes not even then. Being out of state passing through is no excuse for not knowing a local 200 year-old ordinance!

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Re: Clearly, those in Grenfell were aware and TRIED to bring it out. BUT HAS NOTHING TO DO WITH COPYRIGHT.

"That'll be the UK, a literal monarch"

Erm, were you trying to say that it *has* a literal monarch, or that it is a literal monarchy. We know you're not that bright at the best of times, but you're not *that* stupid and divorced from current reality, are you?

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"A cop isn't going to come up and arrest you for breaking a law that you didn't know about."

Hahahahaha - that's funny. They can also arrest you for laws that do not exist. You can beat the rap but you can not beat the ride. Maybe that should appear on the cop car doors rather than To Protect and Serve.

This is hailed as the safest electric plug in the world, but to prove it, you need to shell out.

If you want someone to blame for why UK government department have shop fronts - try Thatchers government, who in the 80's slashed funding for many central gov departments, bringing in the ethos of profit centres. British Standards is required to generate a profit and thus charge for things the UK taxpayers paid for long, long ago. For fun, try and source a digital Ordinance Survey map, which you might need to avoid building on a flood plain...

Copyright

Copyright was originally conceived as a mechanism for breaking guild sececry! That has long passed. Now it is for the benefit of big publishers, parasitic government, and crooks like Eesivier, Sage at al. Copyright no longer serves a purpose; rewarding authors, that is better done by Amazon and the rest of the web. It is pastime to abolish it. Most authors write because they feel compelled. Some are outstanding some horrid and many between-just read some of Amazon's free books. There is no justification of Copyright today not for DRM!

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Public Resource

I am a Techdirt follower and architect working in the US. Carl Malamud's effort to make building codes freely available has helped me so many times (bookmarked in my browser for years). Buying all of the code books is incredibly expensive for a young professional. Even when I have had easy access to code books, Malamud's site had live links between sections of the code which made it so easy to navigate. My state has since made its entire code freely available online, in part because of 3rd parties like Mr. Malamud doing it first. Thanks Carl.

As an aside, I doubt that copyright contributed to the Grenfell fire, but I do know first hand that a freely accessible building code leads to a safer built environment for everyone.

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That's not how standards work. Only the latest version is relevant, so an old version that's out of copyright (meaning it would have to be really old) could not be relied upon.

The builder can't point to some ancient version to say their building is "up to code", sure. But it's hardly irrelevant—when a modern building doesn't comply with 150-year-old safety rules, doesn't that say something about UK building codes? I'm not talking about minor details like how to paint the fire escapes, but things like "don't use flammable materials" and "have 2 or more exits".

The gist of this story was that copyright threatens public safety, but it's disingenuous to use Grenfell as the example. Even without any "secret" information, the residents association had been saying the building was a deathtrap for years.

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I deal with building construction standards in my job, including several that deal with life safety systems, and when they are revised they can go either way. Some aspects might be tightened up, some might be relaxed. It all depends on the collective experiences of the industry in the intervening years. You're right that some things will be obvious, but some things aren't.

The standards for building fire safety are quite complex, and would be impossible for the lay-person to know without access to all the applicable standards. The residents' complaints were likely based on common sense observations, not necessarily familiarity with building standards. They make have known what seemed unsafe, but it would not be easy for them you know what was definitely illegal.

It's always bothered me that standards we're required to comply with by law are locked up behind paywalls, with restrictions that make far less sense than they might when applied to a movie or album. Laws (which they effectively are) shouldn't be so expensive for the public to access.

Re: Clearly, those in Grenfell were aware and TRIED to bring it out. BUT HAS NOTHING TO DO WITH COPYRIGHT.

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The residents' complaints were likely based on common sense observations, not necessarily familiarity with building standards. They make have known what seemed unsafe, but it would not be easy for them you know what was definitely illegal.

Right. Maybe there's some other building where these details will matter, and people could avert a disaster if they knew. Are there examples of non-obvious things that could be checked by residents, that would make a big difference to safety? Things like stairway pressurisation, cladding flammability, and the building materials in the walls are important—but people can't realisitically check those.

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I think both sides of the argument here are right, the problem here is again, as always, the corrupt government officials, law enforcement agents who on one hand do not allow people to know the law but on the other hand require people to know the law.

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Very well put.

On one hand they do not allow people to know the law (or at least make it very difficult), but on the other hand they require people to know the law.

Same happens with everything, I can assure you that most people would love to have the latest iphone or the lates android phone, but what does the duopoly (Google & Apple) tell you? "You have to have one, but if you cannot afford it thats not our problem".

Same goes for health care, everyone should have health care, but if you cannot afford it that is not our problem. Yours truly, the big health and insurance companies.

Same for food, it is supposed to be a human right, yet millions worldwide are hungry, if you cannot afford your nutrition thats not our problem.

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Yes, but his point is that we CANNOT be checking "google" all the time for every time a law changes, gets an addendum, etc. Further, you clearly did not read this article, the laws about building safety were not accessible to the people that lived there.

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"These are not laws that the general public must follow, but laws that companies must follow."

Yes, but as the article states and as CLEARLY the Grenfell case showed, is that we cannot be left to blind-trust the "good will" of those companies. It has been proven time and time again that companies cut corners all the time, even in safety standards, for a buck. And the Grenfell case is just the latest proof.

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Not sure what you think is so funny. You may have noticed that events like this are very rare because the system usually works and most buildings are quite safe. This case is obviously a spectacular and tragic failure, and hopefully the resulting investigation will highlight if changes need to be made and/or if there was non-compliance and illegal behavior.